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FOI Advisory Council Opinion AO-04-18

AO-04-18

May 21, 2018

Amy P. Hall
Stafford, Virginia

The staff of the Freedom of Information Advisory Council is authorized to issue advisory opinions. The ensuing staff advisory opinion is based solely upon the information presented in your electronic mail messages dated November 16, 2017.

Dear Ms. Hall:

You have asked for an advisory opinion regarding (i) certain open meeting practices of the Stafford County Board of Supervisors (the Board) and (ii) responses you received from Stafford County in reply to two information requests under the Virginia Freedom of Information Act (FOIA). As background, you provided a copy of your initial FOIA request to Stafford County in the form of an email dated September 11, 2017, and Stafford County's response in the form of a letter from the Office of the County Attorney dated September 18, 2017. You also provided a copy of a follow-up FOIA request to Stafford County in the form of an email dated September 22, 2017, an email from Wendy Mallow with Stafford County dated September 27, 2017, invoking the seven-working-day extension provided in § 2.2-3704, and the response to your request from Stafford County in the form of a letter dated October 9, 2017. I will address your questions as two different topic areas, the first topic area addressing the open meeting requirements of the Board and its committees and the second topic area addressing the Board's obligations regarding a request for information under FOIA.

Topic Area 1: Open Meetings of the Stafford County Board of Supervisors and Its Committees

Questions Presented

You have asked whether the Board must provide public access to recordings or written minutes from its committee meetings. Additionally, you have asked whether the Board must comply with the open meeting requirements under FOIA for an annual planning meeting, including providing notice of the meeting, recording the meeting, and recording minutes of the meeting.

Factual Background

The Board is the governing body of Stafford County and comprises seven elected members.1The Board has established standing committees to address specific topic areas of the Board's work, with each committee comprising two to three members of the Board. The meeting dates, times, and locations of the committees are posted on the standing committee website and the Stafford County calendar. You have noted that the committee meetings are not recorded and that minutes are not taken.

On February 10 and 11, 2017, the Board held an annual planning meeting in Warrenton, Virginia. According to the agenda posted on the Board's website, topics discussed at the meeting included a five-year financial plan, development of a strategic action plan, and growth management strategies for Stafford County.2 You indicated that the location and agenda for the meeting were not published in advance, despite mention during a February 7, 2017, meeting that a tentative agenda had been provided to the members of the Board and that agenda materials would be available on the members' iPads the next day. You noted that the agenda was posted on the website several days after the meeting, at your request. Finally, you advised that the meeting was not recorded and that meeting minutes were not taken.

Applicable Law and Discussion

FOIA states in § 2.2-3707 that "[a]ll meetings of public bodies shall be open, except as provided in §§ 2.2-3707.01 and 2.2-3711" and goes on to provide various open meeting requirements. Therefore, the first determination that must be made is whether the Board and its committees qualify as public bodies under FOIA. "Public body" is defined in § 2.2-3701 and includes, among other things, "governing boards of counties" and "any committee, subcommittee, or other entity however designated, of the public body created to perform delegated functions of the public body or to advise the public body." The Board is the governing body of Stafford County. The committees, comprising members of the Board, were created by the Board to perform functions of the Board and to advise the full Board.3 Both the Board and its committees clearly fall under the definition of "public body" and are subject to the requirements of FOIA.4

The second issue we must determine is whether the committee gatherings and the annual planning meeting of the Board qualify as meetings under FOIA that are subject to the open meetings requirements. There are two requirements for a gathering of a public body to qualify as a meeting under FOIA: (a) the presence of three or more members, or a quorum (if a quorum is less than three members), of a public body sitting as an assemblage and (b) the discussion or transaction of public business of the public body.5 The committees and the annual planning meeting clearly involve planning and discussion about numerous issues relating to the public business of Stafford County. Assuming three or more members of the Board attend the planning meeting and at least a quorum of two members of each committee is present at committee meetings, both the annual planning meeting and the committee meetings are subject to the open meeting requirements of FOIA.

Finally, we must examine the open meeting requirements and whether there are any exceptions to those requirements that would apply to the committee meetings or the annual planning meeting. Generally, meetings of public bodies will need to be open unless a closed meeting is authorized for a particular purpose under § 2.2-3711.6 Under the facts provided, neither the annual planning meeting nor the standard committee meetings fall under one of closed meeting purposes. Both are therefore subject to the open meetings requirements.

First, FOIA requires notice of the date, time, and location of its meetings at least three working days prior to the meeting.7 The Board must comply with these notice provisions for both the committee meetings and the annual planning meeting. From the information you provided, it appears that the Board was not compliant with this requirement for the annual planning meeting, as it did not provide advance notice.

Second, FOIA requires that agendas and all materials furnished to members of a public body be made available for public inspection at the same time they are given to members of the public body.8 On the basis of the facts you provided, it is unclear whether that was the case in regards to the annual planning meeting agenda. While we strongly encourage public bodies to post the agendas for meetings online, the only requirement is that the agenda be available for public inspection at the same time it is given to the members of the public body. It is possible that the annual planning meeting agenda was available for inspection without being posted online, but we do not have all the information to make that determination.9 According to the standing committee website, the agendas of the committee meetings are posted online prior to the meetings and appear to be in compliance with the requirements of FOIA.

Third, FOIA requires that public bodies allow recordings of open meetings, but it does not require that the public body itself record the meetings.10 The Board would therefore not be in violation of FOIA if it did not record the annual planning meeting or the committee meetings. If the Board did decide to make a recording of a meeting, then that recording would be subject to the public records requirements of § 2.2-3704, but that does not appear to be the case in the given factual scenario.

The final requirement for open meetings is that minutes be recorded.11 Minutes would have to be taken at the annual meeting because there is no exception to the minutes requirement for an open meeting of the full Board. There is an exception, however, to the minutes requirement for committees appointed by the governing bodies of counties, except where the membership of such committee includes a majority of the governing body of the county. The committee meetings, therefore, do not need to comply with the minutes requirement because each committee is composed of only two or three members of the Board, which is not a majority of the seven-member Board.12 Minutes would be required if a committee meeting were to occur that included four or more members of the Board, but that does not appear to be the situation in the instant case.

Conclusion

Assuming at least three members of the Board are present at the annual planning meeting and quorums of the committees are present at committee meetings, both the Board's annual planning meeting and committee meetings are subject to the open meeting requirements of FOIA because (1) the Board and its committees are public bodies and (2) the annual planning meeting and the committee meetings involve the discussion or transaction of public business.

For the annual planning meeting, the Board must provide public notice of the meeting in advance, provide public access to inspect the agenda and materials for the meeting at the same time those materials are given to members of the Board, allow recordings of the meeting, and record minutes. The Board is not required to record the meeting. The Board was therefore not compliant since it did not post advance notice of the meeting or record minutes of the meeting. Although the Board did not post the agenda online at the same time the members of the Board received it, it is unclear if the Board made the agenda available for public inspection at that time, which is the only requirement regarding the agenda.

The committees must also provide advance notice of their committee meetings, provide public access to the agenda and materials at the same time those materials are given to members of the committee, and allow recording of the committee meetings. However, the recording minutes of the committee meetings is not required since less than a majority of the Board sits on each committee. Additionally, there is no requirement that the committee meetings be recorded.

Topic Area 2: Obligations of Stafford County in Response to a Request for Information under FOIA

Questions Presented

You have asked three questions regarding the obligations of Stafford County regarding requests for information under FOIA. The first is whether Stafford County must have a policy document establishing its intention to exempt all documents allowed to be exempt by law and the requirements of such a document if required. The second is whether Stafford County must provide an explanation for any records that are missing or not provided in response to a request. The final inquiry involves whether individual employees or elected officials can self-report in response to a FOIA request.

Factual Background

In the response to your first request for information, you noted that Stafford County failed to provide certain records and did not reference whether those records were withheld, could not be found, or do not exist. You followed up on September 22, 2017, with a second request asking for more information, and Stafford County provided additional information, including emails and text messages to the individual Board members inquiring about information they had in their personal possession. You noted that Stafford County again failed to provide particular records you requested and did not reference whether those records were withheld, could not be found, or do not exist.

Applicable Law and Discussion

Your first question deals with notice of a general policy for exemption of records by a public body. Under § 2.2-3704.1, FOIA requires public bodies, including counties, to post notice of "[a]ny policy the public body has concerning the type of records it routinely withholds from release as permitted by this chapter or other law." In describing how the information is provided to the public, FOIA only requires that public bodies make the information to the public available upon request and post a link to the policy on its website.13 There are no other specific requirements as to how the policy is developed or that a specific physical document exist. The Board has a link on the home page of its website linking to its policy regarding exemptions, which would appear to be in compliance with the current requirements of FOIA for notifying the public of the type of records it routinely withholds.14

Your second question regarding requests for information under FOIA involves the requirements of a public body to provide an explanation for missing requested records. In response to a request for records, public bodies such as the Board must either provide the records requested or provide one of the following four responses in writing: (A) that the records are being entirely withheld, providing the volume and subject matter of the records being withheld as well as the specific Code section that authorizes the withholding; (B) that the requested records are being provided in part and are being withheld in part, providing the volume and subject matter of the records being withheld as well as the specific code sections that authorize the withholding; (C) that the requested records could not be found or do not exist; or (D) that it is not possible to complete the request within the five-work-day period and that the public body requests an additional seven work days to provide one of the responses. Therefore, if a requested public record is not included in a response to a FOIA request, the public body should either state a valid exemption for why the record is withheld or provide an explanation that the record could not be found or does not exist. Failing to respond to a request for records is considered a denial of the request and a violation of FOIA.15

On the basis of the information you provided, Stafford County failed to provide one of the above responses in regard to numerous records requested. It is possible that some of the information you requested does not exist in a manner that qualifies as a "public record."16 For example, the manner in which certain information is maintained by Stafford County, or certain dates and times of complaints that were not written down, may not exist as a public record. If a record that is requested does not exist, a public body has no duty to create a record in response to a FOIA request.17 However, if a record does not exist or cannot be found, that must be conveyed in the public body's response to the request. If Stafford County failed to do that as alleged in the facts provided, then it would be in violation of FOIA.

Your final question is whether individual employees and elected officials can self-report in response to a FOIA request. You provided a particular example in the form of an email dated October 2, 2017, in which the Chief Deputy Clerk to the Stafford County Board of Supervisors requested the individual Board members to provide her with any "handwritten or typed letters or notes plus emails with attachments, texts, social media posts, and Facebook messages sent and/or received during 2017 by any County staff member and/or member of the Board of Supervisors." Presumably, that information from the Board members would then be passed along, compiled, and provided in the response to the FOIA request. In regard to the efforts that public bodies must undertake in a search for records, this office has reasoned previously that "while the methods and extent of searches may vary, any search for records made under FOIA must be carried out in good faith."18 In this case, the Stafford County Board of Supervisors is composed of seven individual members each of whom has his or her own email, phones, and social media. It would therefore seem reasonable and a good practice for members of a public body to examine documents they have and provide those records in response to a FOIA request. Given the facts as presented, it appears that the search was made in good faith in an attempt to discover as much information as possible from each member of the Board.

Conclusion

FOIA does not require that the Board have a particular procedure for the creation of a routine exemption policy for records or that the policy be contained in a physical policy document, but it does require that the Board post a link on its website to the policy. On the basis of the facts provided, it appears that the Board has complied with FOIA in that regard by providing the link to its policy on its website.

Public bodies, including the Board, must provide the requested records or one of the four other responses detailed under FOIA in response to a request. If requested records cannot be found, do not exist, or are being withheld, the Board must state in writing the reasons why the records are not being provided. On the basis of the information provided, it appears that the Board did not provide an explanation for multiple records requested.

Finally, individual employees and elected officials can and should provide information in their possession in response to a FOIA request. Considering that the Board consists of multiple individuals with individual phones, emails, and social media, it makes sense that each member would examine his or her own documents in order to provide all available and applicable documentation. The only requirement is that public bodies must make a good faith search for the requested records. In the facts you provided, it seems Stafford County did that by reaching out to each member of the Board and requesting that the member provide any records in the member's individual possession, which presumably were provided and passed on in the response.

Thank you for contacting this office. We hope that this opinion is of assistance.

Sincerely,

Chad M. Ayers
Attorney

Alan Gernhardt
Executive Director

1Stafford County Board of Supervisors, https://staffordcountyva.gov/319/Board-of-Supervisors (last visited April 24, 2018).2Board of Supervisors 2017 Annual Planning Meeting, https://staffordcountyva.gov/AgendaCenter/ViewFile/Agenda/_02102017-206 (last visited April 24, 2018).3See Stafford County Board of Supervisors Standing Committee Schedule, https://staffordcountyva.gov/1109/Standing-Committee-Schedule (last visited April 11, 2018) (stating that "the Board has established standing committees to help focus their work on various issues").4See Freedom of Information Advisory Opinion 3 (2014) (providing a similar analysis and finding that the committees of the Smithfield Town Council are public bodies subject to FOIA).5§ 2.2-3701.6It is important to note that even closed meetings must start with an open meeting where the public body takes an affirmative recorded vote approving a motion that identifies the subject matter of the closed meeting, the purpose of the closed meeting, and the applicable exemption from the open meeting requirements.7§ 2.2-3707(D).8§ 2.2-3707(F).9See Freedom of Information Advisory Opinion 5 (2012) (advising that an authority only needs to make its meeting agenda packets available for inspection to the public at the same time they are provided to commissioners, but is not required to post the agenda packets online). 10§ 2.2-3707(G). 11§ 2.2-3707(H). 12See Freedom of Information Advisory Opinion 8 (2007) (providing a similar analysis of a Town Council Committee composed of less than a majority of the Council).13§ 2.2-3704.1.14The Rights and the Responsibilities of Stafford County under the Virginia Freedom of Information Act, https://staffordcountyva.gov/DocumentCenter/View/1612 (last visited April 24, 2018). 15§ 2.2-3704(E).16See § 2.2-3701 (Stating that the definition of "public record" means "all writings and recordings that consist of letters, words or numbers, or their equivalent ... however stored, and regardless of physical form or characteristics, prepared or owned by, or in the possession of a public body or its officers, employees or agents in the transaction of public business").17§ 2.2-3704(D).18Freedom of Information Advisory Opinion 4 (2010).